Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10246/MVIA
CASE NAME: 10246 v. Registrar of Motor Vehicles
Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to Section 55.1(3) of the Act.
Appellant Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: June 20, 2016
REASONS FOR DECISION
A hearing was held on June 20, 2016, by teleconference, to consider the Appellant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
The Tribunal ruled to confirm the impoundment pursuant to section 55.1(3) of the Act. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for 45 days.
BACKGROUND
A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by the owner. The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: The Appellant
Motor Vehicle: 2013, MAZD, M31 (the “vehicle”)
Date of Appeal: May 30, 2016
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
FACTS
Evidence for the Appellant
During the hearing, the Appellant reiterated the comments on the Notice of Appeal.
She stated she has a two month old child and she needs the vehicle to attend medical appointments as the child was born premature. Since the impoundment, she has rented a vehicle to attend medical appointments for her child that were initially scheduled every week and are now once a month. Although she resides in a large urban area where the use of public transportation is easily accessible, she feels it is unsafe to use public transit or a taxi with a newborn child. She resides with her husband, the suspended driver, who is employed full-time. She is currently on maternity leave and receives employment insurance.
The Appellant stated that on the evening of the impoundment, her husband had taken the vehicle to get some groceries. Although they have lived together for two years, she stated she was unaware that he did not have a valid driver’s licence and knew nothing of his six year record of driving offences. She stated that the “subject never came up”.
In cross-examination, the Appellant candidly admitted that her husband has been driving on and off throughout the two years they have lived together. She further acknowledged that since the impoundment she has not missed any appointments as she has a rental vehicle. However, the cost of the rental vehicle and the future cost of the impound fees will result in financial hardship.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
The documents tendered by the Registrar and admitted into the record on consent of the Appellant were as follows:
Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Appellant and the driver at the time of the impoundment, as owners;
A copy of the notice prepared by the officer who detained the impounded motor vehicle indicating, among other things, that the vehicle at the time it was detained was being driven by the person convicted of the offence under the Criminal Code of Canada outlined in point 4 below;
Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on February 20, 2014, of Driving with more than 80 mgs alcohol in blood under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then suspended until February 20, 2017.
LAW
Section 55.1 of the Act provides that a motor vehicle may be detained and impounded, and section 50.2 provides the motor vehicle owner’s right of appeal to the Tribunal.
The Tribunal on the appeal may, pursuant to subsection 50.2(5) of the Act, confirm the impoundment or order the Registrar to release the motor vehicle. Pursuant to subsection 50.2(8), the decision of the Tribunal is, final and binding.
Subsection 55.1(3) of the Act states:
(3) A motor vehicle detained under subsection (1) shall be impounded as follows:
For 45 days, if there has not been any previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 90 days, if there has been one previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 180 days, if there have been two or more previous impoundments under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
Regulation 631/98 provides that the prescribed period, referred to above, is two years.
The owner may appeal the impoundment on only four specific grounds set out in subsection 50.2(3):
(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(b) that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;
(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or
(d) that the impoundment will result in exceptional hardship.
The Appellant here appeals on the basis of sections 50.2(3) (d).
Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
The Shorter Oxford English Dictionary, 3rd ed. defines “exceptional hardship” as follows:
Exceptional: Of the nature of or forming an exception; unusual.
Hardship: 1. The quality of being hard to bear; hardness; severity. 2. Hardness of fate or circumstance; severe toil or suffering; extreme privation.
Also, where the owner appeals on the ground of exceptional hardship, subsection 50.2(4) provides:
(4) Clause (3) (d) does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner.
Section 10 of O. Reg. 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section. First, the Tribunal must consider whether no alternative exists for the impounded vehicle. Section 10(4) states: “. . . the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.”
If the Appellant can show that there is no alternative, then the next step is to show that impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or a threat to public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used.
Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:
- financial or economic loss to any person,
- loss of employment or employment opportunity to any person, or
- loss of education or training.
These factors may be considered if the owner demonstrates that:
- there is no alternative to the vehicle available,
- the loss will be immediate, significant and lasting,
- the impact will be on a person ordinarily transported by the vehicle and
- the impact of the loss will be on someone other than the suspended driver and will not be the result of a loss by the suspended driver of the type described above.
The Regulation also states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship. All elements of any ground of appeal must be proven on the balance of probabilities by the owner of the vehicle.
APPLICATION OF LAW TO FACTS
In closing, the Appellant stated she requires her vehicle as the cost of the rental vehicle and the impound fees are causing her financial hardship.
The Agent for the Registrar indicated that that the Appellant has an alternative to the impounded vehicle, and that exceptional hardship, as defined by the Regulation, has not been met. Although the loss of the vehicle for her is inconvenient, there has been no loss of income as she is currently on maternity leave and in receipt of employment insurance.
The onus is on the Appellant to establish her grounds of appeal as provided in section 50.2(3)(d) of the Act, namely, that the owner has suffered exceptional hardship.
In this case, the Appellant’s testimony established that an alternative to the impounded vehicle exists. Since the impoundment, the Appellant has rented a vehicle for the entire time to facilitate easier transportation to her child’s medical appointments and attend to other daily needs. Since she is on maternity leave, she actually does not need to commute to work, but she has decided to rent a vehicle for her daily use. The Tribunal notes that there are public transportation alternatives available in her city. The vehicle rental is undoubtedly expensive for the Appellant, but she has not provided enough evidence to support a finding that she has no reasonable alternative to losing the use of her impounded vehicle.
Further, even if the Appellant could show that there was no alternative to the impounded vehicle, it cannot be said that the impoundment will result in a threat to anyone’s health and safety; nor does the cost of the impoundment on the facts of this case meet the “exceptional hardship” test of being “immediate, significant and lasting.”
The Tribunal finds that the evidence does not support the Appellant’s case on the ground of having no alternative to the impounded vehicle. Therefore, the Tribunal finds that the ground of exceptional hardship, as defined in the Regulation, has not been proven. Therefore, the appeal has failed.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms the impoundment of the Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member
Released: June 22, 2016